19th February 2014 JURISDICTION EXERCISED:

TERRORISM, NEGLIGENCE AND PERSONAL INJURY ABROAD

Here at Woodward's, our Solicitors are experienced in dealing with travel litigation, particularly cases involving personal injuries and food poisoning suffered by our clients whilst on vacation. See what we do - here.

But bringing a claim for personal injuries suffered in another country, which has its own rules, regulations and legal system, can be complex. This is particularly so when the issue of jurisdiction is raised. Jurisdiction is the power or authority for a Court to hear a cause of action, interpret the law and give a verdict i.e. it is a question of which country a case should be heard in.

The Courts of England and Wales have historically been very cautious when choosing to supersede the jurisdiction of other countries. The burden of proof is on the person making the claim to persuade the Court that England is quite clearly the appropriate forum (forum conveniens) for the trial to take place - see Spiliada Maritime Corporation v Cansulex Limited [1987] 1 A.C. 460.

So in what circumstances is it just for a case to be brought in England when the injuries claimed for were caused abroad and the Defendant is from another country?

The case of Pike and Doyle v Indian Hotel Companies Ltd [2013] EWHC 4096 (QB) is a tragic but interesting example of arguments which may persuade English courts to exercise their discretion - read judgment here.

Many of you will remember the terrorist attacks in Mumbai in 2008. Lashkar-e-Taiba militants killed 164 people and injured more than 300 before holding a last stand in a siege at the Taj Mahal Palace Hotel - pictured. The Claimants in this case, William Pike and his former girlfriend Kelly Doyle, were British guests at the hotel on 26 November 2008. Having heard multiple explosions and on seeing smoke coming from the floors below, they locked themselves in their third floor hotel room. Sometime later, as the room started to fill with smoke and amid the sound of gunfire, they attempted to escape through their window. Mr Pike proceeded to tie bed sheets together and lower himself out of the window. The knots in the fabric came undone and he fell to the ground suffering serious injuries. Fire fighters were able to save Ms Doyle.

As a result of the 50 foot fall, Mr Pike broke his back, pelvis, leg and fractured both his left wrist and right elbow. He is now paralysed and needs life-long care. Ms Doyle did not suffer physical injuries but claims continuing psychological injuries. In 2012 the Claimants began legal action against the luxury hotel for its failure to provide effective security and failure to provide advice as to the hotel's emergency procedures and evacuation routes.

Mr Justice Stewart sitting the High Court on 4 December 2013 was asked to determine a variety of procedural issues; the most important of these was whether the claim should proceed in England or in India. He was persuaded that England was clearly the most appropriate forum. In coming to this decision he took into account the following:

Applicable law - Whether the claim was to be heard in England or India, the applicable law would be Indian law. Thus the English courts would have to determine the case by reference to the Indian standards of what constitutes negligence. As English law is more developed in the tort of negligence it was felt that English courts were capable of scrutinising the duty of an occupier to visitors injured by acts of terrorism perpetrated by third parties.

Time - In comparison to 3 years in the English courts, it would take at least 15 years for the case to get to trial in the Indian High Court. If there were any appeals, this would increase to 20 years. Both Claimants would be reaching retirement by this time and the cogency of any witness evidence would have decreased significantly.

Travel - Mr Pike is now paraplegic and suffers from ongoing problems managing his bowels and bladder. It would be extremely difficult for him to travel to and stay in India. In addition, there would be obvious psychological difficulties in returning to Mumbai for both Claimants. If the claim was heard in England, both could attend a trial with relatively little difficulty. There was found to be little prejudice to the Defendant here as a number of witnesses could give evidence by video link and there is a real possibility that evidence as to what happened during the attack may not be contested.

Interim payments - If the claim was pursued in England, the Claimants would be entitled to interim payments before any final award of compensation is made which would help increase their quality of life significantly.
Funding - Neither Claimant would be able to fund their claim in India as public funding and conditional fee arrangements (commonly referred to as 'no win no fee' agreements) are absent. In England, the Claimants have the benefit of conditional fee agreements and additional insurance which would cover their costs whether they win or lose.

Mr Justice Stewart therefore exercised his discretion in favour of Mr Pike and Ms Doyle in what would appear to be both a just and compassionate decision. Having to wait upwards of 15 years for a resolution to this case cannot be seen by any standards to constitute proper access to justice. In any event, this access would have effectively been barred in India given the Claimants' lack of private finance and funding options. These are extreme, if not exceptional, circumstances and as such it would seem to take a great deal to persuade the English courts to assume jurisdiction. However in this case at least, justice may now be able to run its course as expediently as possible.

Rosalind English of 1 Crown Office Row Chambers has written a detailed summary of the judgment - read article here.

Author profile:
Catherine Gibbons, BA (Hons.), LL.B (Hons.), LL.M
Paralegal, Industrial Disease Department

Sources:
http://www.bbc.co.uk/news
http://www.bailii.org/ew/cases/EWHC/QB/2013/4096.html
http://ukhumanrightsblog.com/2014/01/24/taj-mahal-hotel-injury-claim-allowed-to-proceed-in-english-courts/
http://www.leighday.co.uk/News/2012/March-2012/British-Man-Paralysed-in-Mumbai-Terror-Attacks-Sue


Notes:
This is a comment article. Woodward Solicitors do not act for any of the parties mentioned herein.